Safer Products

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Frequently Asked Questions about Toxics in Packaging

DTSC has accumulated many questions that are being asked regarding Toxics in Packaging. Please take a look at the questions and answers that we have provided. We will update this list as we receive more questions.

Q. Would lead chromate pigment be exempt if it were made from post-consumer recycled materials, such as scrap automobile batteries?

No. The exemption applies only to recycled composite materials such as plastic or paper, which might coincidentally contain a regulated metal but are being reprocessed for their primary material content, and not to the four regulated metals or their compounds that have been separated or isolated from recycled materials. This includes pigments.

Q. Who is a Supplier?

A supplier means a person who does or is one or more of the following:

Sells, offers for sale, or offers for promotional purposes, a package or packaging component that is used by any other person to package a product.

Takes title to a package or packaging component, produced either domestically or in a foreign country, that is purchased for resale or promotional purposes.

Acts as an intermediary for the purchase of a package or packaging component for resale from a manufacturer located in another country to a purchaser located in this state, and who may receive a commission or a fee on that sale.

Listed as the importer of record on a United States Customs Service form for an imported package or packaging component.

Q. Who is a Purchaser?

A purchaser means a person who purchases and takes title to a package or a packaging component, from a manufacturer or supplier, for the purpose of packaging a product manufactured, distributed, or sold by the purchaser.

Q. Who is a Manufacturer?

A manufacturer means any person, firm, association, partnership, or corporation producing a package or packaging component.

Q. Who has to provide a Certificate of Compliance?

A manufacturer or supplier of packaging or packaging components must provide a Certificate of Compliance to the purchaser of the packaging or packaging components stating that the packaging or packaging component is in compliance with the law.

Q. Where can I learn more about the exemptions that are expiring?

We have a fact sheet that specifically addresses the expiration of certain exemptions. It is also available from our main Toxics in Packaging web page in the “Fact Sheets” section.

Q. What is meant by the term “recycled materials” as used in the law?

Recycled materials are those materials generated by a business or a consumer that have been separated from solid waste for the purpose of recycling as a secondary material feedstock. For purposes of this law, recycled materials include paper, plastic, wood, glass or ceramics, metals such as steel, aluminum, stainless steel or copper, and other materials.

However, recycled materials under the Toxics in Packaging Prevention Act do not include the four regulated metals (lead, cadmium, hexavalent chromium and mercury) when the metals have been separated into their elemental or other chemical state for recycling as a secondary material feedstock.

For example, lead processed from used automotive batteries and intentionally added as a component to manufacture an ink pigment that is then used to print labels on packaging would not be a “recycled” material for the purposes of the law.

Q. What is Manufacturing?

Manufacturing means the physical or chemical modification of a material to produce packaging or a packaging component.

Q. What is Intentional Introduction?

Intentional introduction means the act of deliberately utilizing a regulated metal in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality.

Q. What is Incidental Presence?

“Incidental presence” means the presence of a regulated metal that is not intended to be a part of the final package or packaging component.

Q. What is a Packaging Component?

A packaging component means any individual assembled part of a package that is produced either domestically or in a foreign country, including, but not necessarily limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, labels, dyes, pigments, adhesives, stabilizers, or any other additives. Tin-plated steel that meets the ASTM specification A623 shall be considered as a single package component. Electrogalvanized coated steel and hot dipped coated galvanized steel that meet the ASTM qualifications A591, A653, A879, and A924 shall be treated in the same manner as tin-plated steel.

Q. What is a Package?

A package means any container, produced either domestically or in a foreign country, providing a means of marketing, protecting, or handling a product, including a unity package, an intermediate package or a shipping container, as defined in the ASTM specification D996. A package also includes unsealed receptacles, including carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs.

Q. What is a Certificate of Compliance?

A Certificate of Compliance is a document that states that a package or packaging component does not contain any intentionally added cadmium, lead, mercury, or hexavalent chromium, nor does it contain any incidentally present quantities of these metals in excess of the allowable maximum concentrations.This Certificate of Compliance must be signed by an authorized official of the manufacturer or supplier.

Q. What do I do with the Certificate of Compliance?

Manufacturers, suppliers and purchasers must keep it on file as long as the package or packaging component is in use. You must provide a copy of the certificate when requested by the Department of Toxic Substances Control.

If you are a manufacturer or supplier and are claiming an exemption, then you must provide a Certificate of Compliance to the Department of Toxic Substances Control stating the specific exemption, and provide additional documentation listed in the Health and Safety code section §25214.15.

Q. What about packaging imported from outside the United States?

All packaging imported from outside the country into California must be in full compliance with the Toxics in Packaging Prevention Act law.

Q. We have just discovered that our packaging or packaging components may not be in compliance with the Toxics in Packaging Prevention Act. Is there a policy regarding self-disclosure?

Q. So, am I a Manufacturer, a Supplier, or a Purchaser?

Determining whether you are a manufacturer, suppliers, or purchaser is based on definitions in laws, including the Toxics in Packaging Prevention Act. Please read these definitions. In some instances, you may be more than one type, depending on what you do with the packaging or packaging component.

“Person” means an individual, trust, firm, joint stock company, business concern, partnership, limited liability company, association, and corporation, including, but not limited to, a government corporation. “Person” also includes any city, county, district, commission, the state or any department, agency, or political subdivision thereof, any interstate body, and the federal government or any department or agency thereof to the extent permitted by law.

“Purchaser” means a person who purchases and takes title to a package or a packaging component, from a manufacturer or supplier, for the purpose of packaging a product manufactured, distributed, or sold by the purchaser.

“Supplier” means a person who does or is one or more of the following:

Sells, offers for sale, or offers for promotional purposes, a package or packaging component that is used by any other person to package a product.

Takes title to a package or packaging component, produced either domestically or in a foreign country, that is purchased for resale or promotional purposes.

Acts as an intermediary for the purchase of a package or packaging component for resale from a manufacturer located in another country to a purchaser located in this state, and who may receive a commission or a fee on that sale.

Listed as the importer of record on a United States Customs Service form for an imported package or packaging component.

Note: “Supplier” does not include a person involved solely in delivering a package or packaging component on behalf of a third party.

If you have any questions, please contact us, or seek legal advise.

Q. Is there an exemption for packaging or packaging components that are manufactured using solder that contains lead?

No. California law specifically prohibits the intentional introduction of the four regulated heavy metals into packaging or packaging components such as from leaded solder.

Q. Is packaging manufactured before the effective date exempt even if it is sold after the effective date?

Yes. If the package has a date of manufacture or the producing company can provide documentation that the package in question was manufactured prior to the effective date, or was in the process of being manufactured prior to the effective date, it is exempt. Situations that are beyond the control of the manufacturer — e.g., old stock being held by retailers — may be dealt with on a case-by-case basis by DTSC. In all cases, packaging that was manufactured after the effective date must be in compliance or else it cannot be sold or distributed in California. Packaging that does not bear a date of manufacture on its label, and would be considered out of compliance due to its regulated metals content, may be sold only if the manufacturer can supply other supporting documentation to the DTSC that it was manufactured prior to the effective date.

Q. If one or more of the heavy metals were used in the manufacturing process but were not intended to be part of the final package, would the package be in compliance with the law if it contained trace amounts of heavy metal below 100 parts per million?

Yes. The package would be in compliance since the regulated heavy metal was used only to aid in a step of the manufacturing process, and any residual metal would be incidentally present if it is neither desired in, nor its continued presence imparts any desirable characteristic or appearance to, the final package.

Trace amounts of residual metal resulting from the use of a processing aid or similar material during production of a product from which a package or packaging component is manufactured, and which processing aid is reasonably expected to be consumed, transformed into a non-regulated chemical during the process, washed or dissolved away, or otherwise nearly all removed during processing, would not make the final package or packaging component non-compliant if the total residual metal level were below 100 ppm, as this is not considered intentional addition of the regulated heavy metal.

Q. I have just found out that our company has not been providing Certificates of Compliance to our purchasers. What can I do?

You need to immediately begin providing your purchasers with Certificate(s) of Compliance for your packaging and packaging components when they purchase from you.

Since this law has been in force since January 1, 2006, it is prudent to send them to everyone who has purchased from you since that date.

Q. How long do I have to keep a Certificate of Compliance?

A manufacturer or supplier must keep a copy of the Certificate of Compliance on file from the time that the packaging or packaging component is first furnished to a purchaser until the packaging or packaging component is no longer in use. (Health & Saf. Code §25214.16.)

A purchaser of packaging or packaging components must retain a Certificate of Compliance for that packaging or packaging component as long as the packaging or packaging component is in use by the purchaser.

Q. Does the law apply to all cans, regardless of size or use?

Yes. The definition of a package under the law includes all steel cans and, therefore, the law applies regardless of size or use.

Q. Can a manufacturer or supplier use one Certificate of Compliance for all of its packages or packaging components?

A Certificate of Compliance must be provided for each package or packaging component. Packaging and packaging components that use the same materials and differ only in size, shape, and/or use can be included in the same Certificate of Compliance.

Q. Are there exemptions to the Toxics in Packaging Prevention Act?

Yes, there are exemptions to the law. However, the exemptions are very specific, and this does not release a manufacturer or supplier from providing a Certificate of Compliance. For more information on the exemptions, along with the documentation required, please read Health and Safety Code sections 25214.14-16.

Reused Packaging– The package or packaging component is reused and contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level and all of the following apply:

The product being conveyed by the package, the package, or packaging component is otherwise regulated under a federal or state health or safety requirement.

The transportation of the packaged product is regulated under federal or state transportation requirements.

The disposal of the package is otherwise performed according to the requirements of this chapter or Chapter 8 (commencing with Section 114960) of Part 9 of Division 104. (Health & Safety Code Section 25214.14 (e)(1).)

Vitrified Label – Section 25214.14 (g)(1) The packaging or packaging component is a glass or ceramic package or packaging component that has a vitrified label, and that, when tested in accordance with the Waste Extraction Test, described in Appendix II of Chapter 11 (commencing with Section 66261.1) of Division 4.5 of Title 22 of the California Code of Regulations does not exceed 1.0 ppm for cadmium, 5.0 ppm for hexavalent chromium, or 5.0 ppm for lead. A glass or ceramic package or packaging component containing mercury is not exempted pursuant to this subdivision.

(2) A glass bottle package with paint or applied ceramic decoration on the bottle does not qualify for an exemption pursuant to this section, if the paint or applied ceramic decoration contains lead or lead compounds in excess of 0.06 percent by weight.

All packaging that is claimed under one of these exemptions may not claim that exemption after January 1, 2010.

Q. Are the changes enacted by SB 774 (2007) expiring?

Yes. The exemptions that were allowed due to SB 774 will expire on January 1, 2010

Q. Are importers subject to the State of California Toxics in Packaging Prevention Act?

Yes, packaging and packaging components are subject to the State of California Toxics in Packaging Prevention Act law upon entering California. If a company imports packaging, packaging components or a product in a package directly or indirectly into California, then DTSC has authority to request a Certificate of Compliance from the importer.